FILED

United States Court of Appeals

Tenth Circuit

January 31, 2011

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 10-3250
(D.C. No. 2:08-CR-20150-CM-2)
(D. Kan.)

DEBORAH JACKSON,
Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, EBEL, and KELLY, Circuit Judges.

This matter is before the court on the governments motion to enforce the
appeal waiver contained in defendant Deborah Jacksons plea agreement.
Ms. Jackson pleaded guilty to conspiracy to distribute methamphetamine and
using and possessing a firearm during and in furtherance of a drug trafficking
crime. Based on Ms. Jacksons two prior felony convictions for drug offenses,

This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.

the district court sentenced her to life imprisonment on the drug conviction, which
was the statutory minimum sentence, and sixty months imprisonment on the
firearms conviction, to be served consecutively. Despite her appeal waiver,
Ms. Jackson seeks to appeal the denial of her motion to withdraw her guilty plea
and her life sentence. We grant the governments motion to enforce the appeal
waiver.
The appellate waiver in Ms. Jacksons plea agreement is extremely broad:
she agreed to waive her right to appeal or collaterally attack any matter in
connection with [her] prosecution, [her] conviction, or the components of the
sentence to be imposed so long as the sentence imposed was within the guideline
range determined appropriate by the court. Mot. to Enforce, Attach. 1, Plea
Agrmt., at A11. After entering her plea, but prior to sentencing, Ms. Jackson
obtained new counsel and moved to withdraw her guilty plea, claiming that the
decision to plead guilty was made by her prior counsel and that she did not
understand the consequences of her plea or how her sentence would be calculated.
The district court held an evidentiary hearing and denied the motion.
In determining whether to dismiss an appeal based upon a waiver of
appellate rights, we consider: (1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver
would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315,
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1325 (10th Cir. 2004) (en banc) (per curiam). Ms. Jackson asserts that her waiver
was not knowing and voluntary and enforcing it would result in a miscarriage of
justice. She does not claim that the appeal falls beyond the waivers scope. Her
attempt to appeal the district courts denial of her motion to withdraw her plea
does fall within the scope of the waiver. See United States v. Leon, 476 F.3d 829,
832 (10th Cir. 2007) ([A]n appeal of a denial of a motion to withdraw a guilty
plea is an attempt to contest a conviction on appeal and thus falls within the plain
language of an appeal waiver provision. (quotation marks omitted) (original
alterations omitted)).
Knowing and Voluntary
Ms. Jackson argues that the plea was not knowing and voluntary because
she lacked an adequate understanding of the waiver. She does not elaborate on
this argument, but merely refers generally to her testimony at the hearing on her
motion to withdraw her guilty plea. Resp. at 3-4.
In evaluating whether an appellate waiver was knowing and voluntary,
we examine whether the language of the plea agreement states that the defendant
entered the agreement knowingly and voluntarily and we look for an adequate
Federal Rule of Criminal Procedure 11 colloquy. Hahn, 359 F.3d at 1325. It is
Ms. Jacksons burden to present evidence establishing that she did not understand
the waiver. See id. at 1329; United States v. Edgar, 348 F.3d 867, 872-73
(10th Cir. 2003).
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Both the plea agreement and the Rule 11 colloquy clearly set out the
knowing and voluntary nature of the plea agreement and appellate waiver. See
Plea Agrmt. at A11 (stating that Ms. Jackson knowingly and voluntarily agrees to
the appeal waiver); id. at A13-A14 (acknowledging that Ms. Jackson read the plea
agreement; discussed its terms with her attorney; understands the plea agreement
and agrees it is true and accurate; the agreement is not the result of any threats,
duress or coercion; and she is entering into the plea agreement because she is
guilty and is doing so freely and voluntarily); Mot. to Enforce, Attach. 2, Tr. of
Rule 11 Colloquy, at A28-A32 (summary of the plea agreements provisions and
Ms. Jacksons confirmation that the summary is her understanding of the plea
agreement); id. at A23 (Ms. Jacksons confirmation that she understands that her
term of imprisonment on her drug count is not less than life imprisonment
because of her two prior felony drug convictions); id. at A36 (Ms. Jacksons
confirmation that she is entering the plea freely and voluntarily and of her own
free will, because she is in fact guilty of the charged offenses, and that her plea is
not forced, threatened or induced by any sort of promise to her); id. at A40 (Ms.
Jacksons confirmation that the decision to enter her guilty plea is her decision,
not her attorneys); id. at A33-A35 (courts recitation of the appellate waiver
provision and Ms. Jacksons confirmation that she reviewed the appellate waiver
provision with her attorney, understands it, has not been forced or threatened into
waiving her appellate rights, and is requesting the court to approve the waiver of
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her own free will); id. at A36-A37 (Ms. Jacksons confirmation that she reviewed
the plea agreement with her counsel, who informed her of its provisions and the
consequences of signing it); id. at A40 (Ms. Jacksons confirmation that she is
satisfied with the services of her attorney).
In contrast to her statements under oath during the Rule 11 Colloquy,
Ms. Jackson stated at the hearing on her motion to withdraw her plea that she was
not guilty of the charged offenses and that she did not plead guilty because she
was guilty, but because she thought it would help in her sons criminal case and
because she was told she would get a sentence of thirty years imprisonment, not
life, if she signed the plea agreement. Resp., Attach. Tr. of Mot. to Withdraw
Plea Hrg, at 9-12, 15-16, 17. She further stated that she had not reviewed the
plea agreement with her attorney prior to signing it, the plea agreement was
confusing to her, and she had to look at her attorney during the Rule 11 Colloquy
in order to answer the courts questions. Id. at 9, 17, 20-21. Ms. Jacksons first
attorney testified, however, that he met with Ms. Jackson five times prior to her
guilty plea and that he reviewed and explained the plea agreement to her
paragraph-by-paragraph. Id. at 63, 68-69. He testified that he told Ms. Jackson
that the plea agreement was in her best interests because she would get a sentence
of life imprisonment by statute unless she cooperated, 1 but he did not tell
1

In the plea agreement, the government agreed to recommend up to a

three-level reduction in the applicable offense level under U.S.S.G. 3E1.1,
(continued...)
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Ms. Jackson that her plea would help her sons criminal case and never threatened
her. Id. at 72, 79-80. Further, he testified that Ms. Jackson did not look at him
for guidance in answering the courts questions during the Rule 11 colloquy.
Id. at 70-71. In denying her motion to withdraw her plea, the district court found
that Ms. Jacksons testimony that her attorney coerced her into entering into the
plea agreement and that her plea was not knowing and voluntary was not credible.
Id. at 124-28.
We have reviewed the plea agreement, the Rule 11 colloquy, and the
testimony at the hearing held on her motion to withdraw her plea, and we
conclude that Ms. Jackson knowingly and voluntarily agreed to the appeal waiver
in her plea agreement.
Miscarriage of Justice
Ms. Jackson contends that, consistent with her testimony at the hearing on
her motion to withdraw her plea, she received ineffective assistance of counsel.
Ineffective assistance of counsel in connection with the negotiation of an appeal
waiver can result in a miscarriage of justice. See Hahn, 359 F.3d at 1327. This
1

(...continued)
contingent on Ms. Jacksons continuing manifestation of acceptance of
responsibility, and agreed to request the court to consider a further sentence
reduction if the government determined that she had provided substantial
assistance within the meaning of U.S.S.G. 5K1.1. See Plea Agrmt. at A7, A9.
After a year of requesting and receiving extensions of her sentencing hearing,
Ms. Jackson moved to withdraw her plea and protested that she was actually
innocent. Accordingly, the government did not request any U.S.S.G. 3E1.1 or
5K1.1 sentence reductions.
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claim generally is not properly brought on direct appeal, however, because an

ineffective assistance of counsel claim must ordinarily be raised in a 28 U.S.C
2255 proceeding. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.
2005). Ms. Jackson acknowledges this rule, and requests that any dismissal of her
appeal be without prejudice to asserting this claim in a 2255 motion. Of course,
Ms. Jacksons appeal waiver does not preclude her from bringing a 2255 motion
alleging ineffective assistance of counsel relating to the waiver itself, see United
States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001), as her plea agreement
states, see Plea Agrmt. at A11.
The motion to enforce the plea agreement is GRANTED and this appeal is
DISMISSED, without prejudice to Ms. Jacksons right to raise an ineffective
assistance of counsel claim in a collateral proceeding.

ENTERED FOR THE COURT

PER CURIAM

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